What is ARTICLE 370?
Article 370 of the Constitution of India gave special status to Jammu and Kashmir and it gave it power to have separate constitution, separate flag, separate laws and autonomy over its administration.
According to this provision Indian Parliament had power in state of Jammu and Kashmir only in areas of Defence, Communication and External Affairs.
Article 370 is present under Part XXI of the Constitution titled as Temporary, Transistional and Special Provisions.
It is said to be temporary provision as it can be modified, deleted or retained by Jammu and Kashmir Constituent Assembly and Jammu and Kashmir Constituent Assembly retained it.
It is temporary in the sense that President can remove it through issue of public order by taking permission from Jammu and Kashmir Constituent Assembly.
Why ARTICLE 370 was inserted in THE INDIAN CONSTITUTION?
At time of Independence British India was divided into India and Pakistan. And for some Princely States there were three options given under Indian Independence Act,1947 that is to remain independent, to join India or to join Pakistan.
Raja Hari Singh of Jammu and Kashmir at that time decided to remain Independent. But after invasion from army men and tribesman from Pakistan, he sought help of India which led to accession of Kashmir to India. On 26th October 1947 Government of India and Hari Singh signed Instrument of Accession and Jammu and Kashmir became part of India. But it was Indian policy that dispute regarding accession be settled according to peoples wishes and not by princely states ruler unilateral decision. So on 17th October 1949 India incorporated Article 370 in Constitution as temporary provision.
So article 370 came because of signing of Instrument of Accession and as it was told to provide special provision for Jammu and Kashmir.
Article 1 of Constitution held Jammu and Kashmir as separate State.
Article 370 was medium of connecting India to Jammu and Kashmir.
ARTICLE 35A In the story
On 14th May 1954 presidential order by then President Rajendra Prasad was passed and with that Article 35A was included in the Constitution.
Article 35A says that all the laws that other states follow will not be applicable in Jammu and Kashmir, President will decide along with state assembly which laws will be applicable in Jammu and Kashmir.
Through this provision and Jammu and Kashmir Constitution it is decided that who is the permanent resident of the state. The permanent residents of the state are ones who are state subject from 14th may 1954 or those who are living there since 10 years or more or those who had lawfully acquired an immovable property there.
The permanent residents have some special privileges that non residents does not have.
This provision states that Jammu and Kashmir has separate laws for its residents regarding citizenship, ownership of land and property and regarding fundamental rights.
Due to such provision other state residents cannot buy any land or own property in Jammu and Kashmir. This also restricted other state residents in jobs and higher education in Jammu and Kashmir.
Why ARTICLE 370 and ARTICLE 35A story was need to be ended?
This provisions were acting as a hurdle or barrier in development of Jammu and Kashmir, as no other person other than its own resident can invest in that state and no opportunities for jobs were present for other non residents.
Article 35A along with Jammu and Kashmir Constitution was discriminatory as it states that if any kashmiri women marries Non Kashmiri she will lose her property rights.
The idea of democracy was lacking as due to such provision unity and integrity was also affected of country.
It was required to prevent terrorist operation that happen across the border.
To prevent violations of human rights and discrimination to minorities and women over there.
It was needed to make Jammu and Kashmir socially and economically stable.
Due to such provisions minorities groups and some other groups suffer discrimination in Jammu and Kashmir.
So it was needed to remove such provision from Indian Constitution, and it can be done through presidential order that makes application of Article 370 inapplicable but for doing that president require to take permission from Jammu and Kashmir Constituent Assembly. But the Constituent Assembly got dissolved in 1957 so government was not able to remove it earlier. And therefore this provision was existing from last 70years in Constitution.
How the story ended?
Jammu and Kashmir Constitution was came into force in 1956. In 2015 BJP formed government in Jammu and Kashmir along with PDP. But in 2018 BJP breaks alliance with PDP.
So according to Article 92 of Jammu and Kashmir Constitution if state constitutional machinery is not working properly then Governor rule came into picture but as there was no state government at that time in December 2018 Presidential rule was imposed.
In 2019 BJP won Parliamentary election and in pursuance of its election manifesto of removing Article 370 and 35A, on 5th August 2019 President Ram Nath Kovind as per Clause1 of Article 370 passed presidential order “The Constitution (Application to J&K) Order 2019” that replaced 1954 presidential order that inserted Article 35A in Indian Constitution. It means that existence of Article 35A is finished.
Home Minister Amit Shah proposed two resolutions
All clauses of Article 370 to be inoperative except clause 1 and therefore made all provisions of Indian Constitution applicable to Jammu and Kashmir.
Jammu and Kashmir Reorganisation Act passed that led to division of Jammu and Kashmir into two Union Territories i.e through Section 3 Ladakh and through Section 4 Jammu and Kashmir.
For passing such presidential order permission from Jammu and Kashmir Constituent Assembly was required but it was dissolved in 1957 , so for doing such government added Clause 6 in Article 367 of Indian Constitution that held that replaced Constituent Assembly with Legislative Assembly.
So Article 370 was itself taken as a weapon to held such Article inoperative. Now Jammu and Kashmir have no separate constitution but have to abide by the Indian Constitution.
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Impact of the abrogation of Article 370
There have been large impact of this abrogation and there have been both advantages and disadvantages by the end of Article 370.
Now Jammu and Kashmir will no longer enjoy special status.
Indian Constitution and its laws will be completely applicable on the state.
Now there will be only one flag and no separate flag for Jammu and Kashmir.
The Legislative Assembly will now be having 5 year term instead of 6.
Minorities will be having 16% reservation.
Now the private sectors will be able to invest in Jammu and Kashmir and this will have a good impact on the state economy.
Job opportunities will increase.
Discrimination against women regarding her property will be removed.
Terrorism and other such activities will be controlled in a better way.
Now there will be no dual citizenship.
Indian Penal Code will replace the Jammu and Kashmir Ranbir Penal Code.
Now any Indian citizen can buy property in Jammu and Kashmir.
Conclusion
Article 370 which was present in the Constitution of India from a very long time has now been removed, for the betterment of the state of Jammu and Kashmir, for its development, to provide equal opportunities to all etc.. This move by the government had a significant impact on demography, culture and politics of Jammu and Kashmir. Now its been a year of removal of Article 370 and division of state of Jammu and Kashmir into two union territories, though due to Covid 19 and lockdown still there is no significant changes has been seen but hopefully the move will open the doors for betterment of the whole India and its people.
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About the Author
My name is Payal Paliwal currently pursuing B.A.LL.B. 5th year from Jamanalal Bajaj School of Legal Studies, Banasthali Vidhyapith, Newai, Rajasthan.
My hometown is Gudhanathawatan,Bundi Rajasthan. My aim is to clear Rajasthan Judicial Services and fulfill my father's dream. I have a special interest in constitutional law. In my free time i enjoy dancing, riding bikes and discussion on current issues.
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